Kerry land row heats up as Bord Pleanála rules on gate

Saturday, July 08, 2017

Seán McCárthaigh

A bitter row over a disputed right of way near the Lakes of Killarney is set to erupt again after An Bord Pleanála ruled that a gate erected to block public access to the lakeshore is not exempt from planning permission requirements.

The issue was referred to the planning appeals authority after Kerry County Council was asked by a local resident, Donal Coffey, to determine if an electronic gate erected in 2010 by a farmer, Cornelius Dennehy, constituted a development under planning legislation known as a Section 5 application.

The steel gate, which contains signs warning mem-bers of the public about trespassing on private property and the operation of CCTV cameras, is located on a private road south of the village of Fossa.

The road links the N72 main Killarney-Killorglin road to the shore of Lough Leane as well as providing access to a number of houses and the Loch Lein Country House Hotel.

Dr Coffey, a family doctor with a practice in Killarney who owns part of the road, claimed that the gate enclosed land which had been habitually used by the public for at least 10 years before its erection as an access route to the lake.

Dr Coffey pointed out that when Mr Dennehy sought retention permission for his existing home in 1996, public notices were placed at the front of his house rather than at the junction of the lane and the N72. The doctor claimed this indicated that Mr Dennehy acknowledged the public use of the road.

Lawyers for Mr Dennehy of Acorn Lodge, Fossa, claimed the erection of the gate could not be construed as “the carrying out of any works” under planning legislation.

They argued that Kerry County Council had neither power to adjudicate on the rights of private landowners nor to restrict such rights.

Mr Dennehy also strongly contested the ability of An Bord Pleanála to interfere with private interests via a Section 5 application.

He acknowledged that his parents had facilitated Fossa Rowing Club in the past in gaining access to a boathouse on the lake but the “private arrangement” had been abused.

Mr Dennehy pointed out that the issue had already been the subject of legal actions taken separately by Fossa Rowing Club and another local landowner, Maurice O’Connell, in the Circuit Court which rejected claims that a right of way existed on the road.

As a result of the court’s ruling, Fossa Rowing Club, which had existed from 1893, claimed it was effectively shut down as its members could no longer access its boathouse. The case is being appealed to the High Court.

Mr Dennehy also claimed that Kerry County Council accepted there was no public access through his property when local authority officials entered negotiations with neighbouring land- owners to develop another access route to the lakeshore.

However, in its ruling, An Bord Pleanála said the fact the gate had enclosed land that was habitually open to and used by the public during the 10 years prior to its erection as a means of accessing Lough Leane meant it was not an exempted development.

The decision means it is now open to Mr Dennehy to seek retention planning permission for the gate or face possible enforcement action by Kerry County Council to take it down.